UNITED STATES OF AMERICA v. HENRY MENDOZA, AKA Hank, AKA Pelon, AKA Spanks, AKA Spanky
No. 19-50092
United States Court of Appeals for the Ninth Circuit
February 8, 2022
D.C. No. 2:16-cr-00390-PA-19
FOR PUBLICATION
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Argued and Submitted December 6, 2021 Pasadena, California
Before: Marsha S. Berzon, Carlos T. Bea, and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Bea
SUMMARY*
Criminal Law
The panel vacated convictions for conspiracy to distribute methamphetamine under
The panel held that there was insufficient evidence to support the defendant‘s conviction for conspiracy to distribute methamphetamine. Explaining that it must distinguish between a mere drug buyer and a participant in a drug-distribution conspiracy, the panel wrote that even after making all reasonable inferences in the prosecution‘s favor, the government did not establish the “prolonged and actively pursued course of drug sales” for which the court looks when deciding, in the absence of direct evidence of an agreement, if there is sufficient evidence of an agreement to distribute drugs. The panel therefore concluded that no reasonable jury could determine beyond a reasonable doubt that the defendant was part of a conspiracy to distribute methamphetamine.
Because the government‘s RICO conspiracy case turns on the same element of proof and the same evidence as did its drug conspiracy case, the panel held that there is likewise insufficient evidence to support the defendant‘s conviction for RICO conspiracy.
The panel held that the defendant‘s conviction under
Given its conclusion that sufficient evidence did not support the defendant‘s convictions for drug-trafficking conspiracy, RICO conspiracy, and possession of a
COUNSEL
Ethan A. Balogh (argued) and Narai Sugino, Balogh & Co. APC, San Francisco, California, for Defendant-Appellant.
Lindsay M. Bailey (argued), Assistant United States Attorney, International Narcotics, Money Laundering & Racketeering Section; Bram M. Alden, Acting Chief, Criminal Appeals Section; Tracy L. Wilkison, Acting United States Attorney; United States Attorney‘s Office, Los Angeles, California; for Plaintiff-Appellee.
OPINION
BEA, Circuit Judge:
Every parent knows that teenagers make mistakes. A fifteen-year-old Henry Mendoza was no exception, though his error was far more serious than most. At that young age, Mendoza joined the Canta Ranas Organization (“CRO“), a Californian gang known for violent extortion and drug distribution. Mendoza was a member of the CRO for at least eight years and served under the leadership of two of his childhood friends, the gang‘s heads. All agree so far. But after this point, Mendoza‘s path becomes less clear.
The government alleges that Mendoza continued as an active gang member until 2016, when he was arrested as part of federal law enforcement‘s wide-ranging takedown of the CRO. As its key evidence, the government cites two incidents in June 2013 and December 2016 when law enforcement caught Mendoza with a handgun and methamphetamine (16.2 grams in 2013; 3.3 grams in 2016) and a handful of phone and text message conversations between Mendoza and CRO members, at least two of which involve Mendoza asking for methamphetamine.
Mendoza admits to a long-standing methamphetamine addiction but denies membership in the CRO. As he tells it, he left the CRO after eight years in its membership, and is now an addict, not a dealer. He argues that the methamphetamine with which he was found in 2013 and 2016 was for his own consumption, not for re-sale, and that the contacts between him and CRO members were sporadic attempts to purchase drugs from childhood friends rather than evidence of committed gang membership.
The jury, for its part, appears to have believed both Mendoza and the government, which also means that it fully believed neither. As to Mendoza‘s drug possession in June 2013, the jury acquitted him of possession of methamphetamine with intent to distribute and convicted him only of simple possession. But as to Mendoza‘s relationship with the CRO, and despite its apparent view of the evidence from the June 2013 incident, the jury convicted Mendoza of conspiracy to distribute methamphetamine, RICO conspiracy, and possession of a firearm during and in relation to or in furtherance of a crime of violence or drug-trafficking offense.1
Mendoza appeals the two conspiracy convictions and the firearm possession conviction, challenging both the sufficiency of the evidence underlying them and several jury instructions and decisions by the district court. With jurisdiction under
A. Factual Background
The Canta Ranas Organization (again, the “CRO“) was a street gang active in Santa Fe Springs, California. The CRO was managed on the street by Jose Loza and David Gaitan, engaged in extortion and drug trafficking, among other crimes, and at its peak had dozens of members.
Mendoza joined the CRO at age fifteen, and since childhood he has been close personal friends with CRO leaders Loza and Gaitan. Mendoza testified at trial, however, that he left the gang around eight years after he joined and subsequently moved away from the gang‘s territory, taking with him only a lifelong addiction to methamphetamine and a series of gang-related tattoos. (The government disputes that Mendoza left the gang.) Mendoza also introduced testimony that in the years after he claims he left the CRO, he worked a regular job and supported his ongoing methamphetamine addiction with that job‘s earnings.
In the 2010s, the federal government began a sustained investigation of the CRO; this investigation yielded the government‘s evidence against Mendoza. As part of the investigation, law enforcement surveilled CRO leader Gaitan‘s home, the “central hub for all of the gang‘s drugs and guns,” and wiretapped Gaitan‘s phone. Over a seven-month period in 2013, the police intercepted about 21,000 calls and texts. Of the 21,000, Mendoza participated in four.2 Separately, the police also later found one text message conversation between Mendoza and a CRO member.
Two of the four calls that included Mendoza were from June 2013. In the first, Mendoza called Gaitan to ask if he could purchase methamphetamine; in the second, Gaitan called Mendoza‘s house the next day to tell Mendoza that the drugs were ready. That evening, the police intercepted Mendoza in his car, and upon searching him and the car, found $31 in cash, a phone, a handgun, a police scanner, and about 16.2 grams of pure meth. The police found no evidence of drug selling, packaging, or cutting (i.e., diluting it with another substance) but also no needles or pipes that Mendoza could use to consume the drug.
Several weeks later, the police intercepted two calls between CRO members that were about Mendoza. One was between CRO head Loza and CRO member Robert McAfee; the other was between Loza and CRO head Gaitan. In both, Loza and the other member (McAfee or Gaitan) discussed their unsuccessful efforts to contact Mendoza. And a day or two later came a third call involving Mendoza. This time, Mendoza called Jose Loza and the two discussed Loza‘s efforts to contact Mendoza.3
Three years later, in April and May 2016, came the text conversation involving Mendoza. In it, Mendoza asked a CRO member, Antolin, for meth, and used several CRO-related phrases and images when making his request. During the next few weeks, Mendoza haggled with Antolin over the price of the methamphetamine he requested, and informed Antolin that if Antolin could not provide the drugs, Mendoza would purchase them from someone else.
B. Procedural History
At trial, Mendoza was charged with: 1) possession of methamphetamine with intent to distribute under
II. DISCUSSION
Mendoza‘s primary argument on appeal is that the government offered insufficient evidence to support three charges of which he was convicted: 1) conspiracy to distribute methamphetamine 2) RICO conspiracy, and 3) carrying a firearm during and in relation to or in furtherance of a crime of violence or drug-trafficking crime. In addition, Mendoza argues: 1) that he was entitled to a sua sponte jury instruction for his drug conspiracy charge on the “buyer-seller rule,” which instructs that a “conviction for conspiracy cannot be based solely on the purchase of an unlawful substance,” United States v. Moe, 781 F.3d 1120, 1123 (2015); 2) that the trial judge gave erroneous supplementary jury instructions on the RICO conspiracy charge that confused the jury; and 3) that the jury may have convicted him under
We discuss below Mendoza‘s argument that insufficient evidence supports his three challenged convictions. As we agree with Mendoza, we vacate those convictions and decline to reach Mendoza‘s other alleged errors.
A. Standard of Review
When this Court reviews a challenge to the sufficiency of the evidence supporting a criminal conviction, we perform a two-step analysis. First, we “consider the evidence presented at trial in the light most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). In other
B. Mendoza‘s Conviction for Conspiracy to Distribute Methamphetamine
Mendoza first challenges the evidence supporting his conviction for conspiracy to distribute methamphetamine. To prove a conspiracy, the government must prove: “1) an agreement to accomplish an illegal objective; and 2) the intent to commit the underlying offense.” United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009) (quoting United States v. Barragan, 263 F.3d 919, 922 (9th Cir. 2001)). Circumstantial evidence can suffice to prove a conspiracy. See id.
Here, we must distinguish between a mere drug buyer, as Mendoza contends he was, and a participant in a drug-distribution conspiracy, as the government alleges he was. In cases like this, the buyer-seller rule dictates that “mere sales to [or purchases from] other individuals do not establish a conspiracy to distribute or possess with intent to distribute.” United States v. Lennick, 18 F.3d 814, 819 n.4 (9th Cir. 1994). Rather, the government must show that Mendoza and the CRO “had an agreement to further distribute the drug in question“: methamphetamine. Id.
We will find such an agreement and “uphold a conviction for conspiracy between buyer and seller where there is ‘evidence of a prolonged and actively pursued course of sales coupled with the seller‘s knowledge of and a shared stake in the buyer‘s illegal venture.‘” Moe, 781 F.3d at 1125 (quoting United States v. Ramirez, 714 F.3d 1134, 1140 (9th Cir. 2013)). If we instead see only “a casual sale [or purchase] of drugs, of a quantity consistent with personal use on the part of the buyer, with no evidence of any subsequent (or planned) redistribution of purchased drugs,” the evidence is generally insufficient to support a conspiracy conviction. Id. We assess “the entire course of dealing’ between alleged co-conspirators,” and consider whether the “drugs were sold on credit,” the “frequency” and “quantity” of sales, and “whether the transactions were standardized,” among other factors. Id. at 1125, 1126 (quoting Mincoff, 574 F.3d at 1194).
At trial, the government offered the following evidence of Mendoza‘s guilt:
- Mendoza was admittedly a member of the CRO when he was a teenager, and gang membership is typically “for life.”
- Mendoza has multiple tattoos with CRO imagery, one of which commemorates a deceased CRO member and post-dates when Mendoza claims he left the gang.
- At Mendoza‘s arrest on June 2, 2013, he had with him 16.2 grams of pure methamphetamine in two separate bags, a police scanner, and a loaded gun, all consistent with drug “sales as opposed to personal use.” Further, Mendoza was not found with either syringes or pipes that he could use to inject or smoke
meth.6 - Mendoza purchased the 16.2 grams of methamphetamine he was caught with in 2013 from CRO leader Gaitan, and did so on credit rather than paying in cash.
- Mendoza had several phone or text conversations with CRO members. Mendoza called Gaitan once in 2013 to ask if he should come to his house, and then called a few weeks later to request methamphetamine. The day after the second call, Mendoza received a call from Gaitan on his mother‘s home phone to tell him that the drugs were ready.
- Mendoza also received a call from Loza on his mother‘s home phone several weeks later in 2013,7 and in 2016, Mendoza texted Antolin, a CRO foot soldier, to ask him for methamphetamine and used several CRO-related images in the conversation.8
- When Mendoza was arrested in December 2016, he had a gun and 3.5 grams of methamphetamine in two baggies.
- The gun that Mendoza had in 2013 had been used to shoot at a car that was driven by a member of another gang just over a week before Mendoza was found with it.
Mendoza offered innocent interpretations of the above evidence, but we must ignore them, see Nevils, 598 F.3d at 1167.
Mendoza also offered the following as evidence of his innocence:
- When Mendoza was found with methamphetamine in June 2013 and in December 2016, he had with him no materials that could be used to cut (again, to dilute with another substance), weigh, package, or otherwise sell drugs.
- Mendoza was absent at the “mandatory” CRO meeting that the government surveilled and apparently suffered no consequences as a result.
- CRO members apparently did not speak with him regularly or even have his phone number.
-
Mendoza participated in just four communications over seven months with CRO members out of the 21,000 gang communications the police intercepted. - The two consummated or attempted drug sales between Mendoza and CRO members were ad hoc rather than standardized transactions. Specifically, Mendoza negotiated price, and threatened to buy methamphetamine from another seller (who the government did not establish was a CRO member) if Mendoza could not obtain a good price from his CRO contact.
In our view, the above evidence is insufficient to convict Mendoza of conspiracy to distribute methamphetamine beyond a reasonable doubt. True, the government offered some circumstantial evidence linking Mendoza to the CRO (for instance, Mendoza‘s 2013 tattoo and his conversations with CRO members) and to objects that are consistent with drug trafficking more generally (for instance, Mendoza‘s guns and police scanner).9 And Mendoza did once purchase methamphetamine from CRO leader Gaitan once without paying immediately in cash, and he attempted to buy drugs another time from CRO member Antolin. But even “ample proof that [Mendoza] possessed and [bought] drugs” is insufficient on its own for a conspiracy conviction. Ramirez, 714 F.3d at 1140. The government must prove with sufficient evidence “an agreement” between Mendoza and CRO co-conspirators under which Mendoza “would ‘further distribute the drugs‘” that he bought from the CRO. Id. (quoting Lennick, 18 F.3d at 819). When we rely on circumstantial evidence to establish an agreement, as we do here, “what we are looking for is evidence of a prolonged and actively pursued course of sales” and Mendoza‘s “knowledge of” and “shared stake in” the CRO‘s drug operation. Id.
Assessed under these criteria, the evidence here of any agreement or shared stake is lacking compared to what we have previously found sufficient. Consider our two decisions in United States v. Mincoff and United States v. Loveland, 825 F.3d 555 (9th Cir. 2016). In Mincoff, we found sufficient evidence for a drug conspiracy conviction because the evidence, including live testimony and multiple recorded calls outlining the drug buyer‘s future plans to re-
sell the product to another buyer, “demonstrated an agreement to further distribute the cocaine, rather than the ‘mere purchase’ of large quantities of drugs.” 574 F.3d at 1194. Here, in contrast, we have no “recorded calls” or testimony that Mendoza was to “further distribute” methamphetamine (or actually did), and Mendoza was never found with typical implements of drug sales like cutting agents, scales, or numerous small baggies.
In Loveland, we vacated a conspiracy conviction and held that even evidence of “repeated sales and large quantities could not sustain a conspiracy conviction” absent evidence of a defendant‘s “involvement” in future drug sales. 825 F.3d at 560. Here, we have no evidence of repeated, large-quantity sales and barely any evidence linking Mendoza to future drug sales.
While this gap in the government‘s case might not be fatal on its own, Mendoza also presented multiple items of evidence that affirmatively contradict the government‘s theory. For instance, the government argues that Mendoza was a “senior foot soldier” in the CRO. But Mendoza missed a “mandatory” gang meeting and suffered no consequences, and the CRO‘s leaders did not even have his phone number. In fact, one of the CRO‘s leaders, Mendoza‘s close friend from childhood, resorted to messaging Mendoza using a text-messaging feature on a videogame the two played, and he often failed to reach Mendoza even through this method because the two rarely played at the same time. That is not how co-conspirators usually communicate. Cf. Moe, 781 F.3d at 1126 (finding sufficient evidence to support a drug conspiracy conviction where the buyer and seller “communicated closely together and coordinated their actions“). The government submits that Mendoza was “required to pay taxes” (i.e., the CRO‘s share of drug sale profits) on drugs he acquired from the CRO and then re-sold and was then “hounded . . . for repayment.” But the communications between Mendoza and CRO members the government cites make no mention of “taxes” or a debt owed on drugs obtained by Mendoza, and after CRO leader Loza told Mendoza that he tried to reach him for “seven days straight,” he did not berate Mendoza for not paying taxes but instead told him to “take care.” That is hardly “hound[ing],” and certainly not what one would expect a gang leader to tell his in-debt inferior. And the government contends that in May and June 2016, Mendoza “communicated with [a CRO member] for the purpose of obtaining methamphetamine for sale on behalf of the CRO.” But Mendoza had to pester that CRO member for almost a month and then threaten to purchase drugs from someone else to convince the gang member to sell to him, and even after Mendoza convinced the gang member to make a sale, Mendoza haggled over price and quantity. There was no mention in the communication of resale. That is not how co-conspirators in a drug-trafficking operation transact. See Moe, 781 F.3d at 1126 (recognizing that drug co-conspirators typically engage in “standardized” transactions). Indeed, we have held that a buyer-seller relationship (as opposed to conspiracy) is particularly likely when, as here, the downstream buyer called the upstream seller (rather than vice versa) and when the downstream buyer was “free to shop elsewhere.” Loveland, 825 F.3d at 563; see id. at 562.
We find only more support for our conclusion when we step back to consider the “entire course of dealing” between Mendoza and the CRO. Moe, 781 F.3d at 1125 (quoting Mincoff, 574 F.3d at 1194). That “entire course of dealing” consisted of four phone calls and one short text conversation out of 21,000 communications and seven months of intensive audio surveillance on
“agreement . . . to distribute meth“). Compared to the evidence in Moe, the “course of dealing” between Mendoza and the CRO was more of a trickle.
Given all the evidence just discussed, and even after making all “reasonable inference[s]” in the prosecution‘s favor, Nevils, 598 F.3d at 1167, the government simply did not establish the “prolonged and actively pursued course of [drug] sales” for which we look when deciding, in the absence of direct evidence of an agreement, if there is “sufficient evidence of an agreement” to distribute drugs. Loveland, 825 F.3d at 560 (quoting Ramirez, 714 F.3d at 1140). Even if the evidence of Mendoza‘s relationship with the CRO raises “a reasonable suspicion or probability” of his guilt, that level of certainty “is not enough.” United States v. Espinoza-Valdez, 889 F.3d 654, 659 (9th Cir. 2018). “Guilt, according to the basic principles of our jurisprudence, must be established beyond a reasonable doubt.” Id. Given this strict standard, no reasonable jury could determine beyond a reasonable doubt that Mendoza was part of a conspiracy to distribute methamphetamine. The evidence the government offered at trial as to the conspiracy count was insufficient.
C. Mendoza‘s Conviction for RICO Conspiracy
Mendoza next challenges the sufficiency of the evidence supporting his conviction for RICO conspiracy. Of the five elements of a RICO conspiracy set out in the jury instructions, Mendoza challenged only one: whether he actually “became a member of the conspiracy knowing of its object and intending to help further or facilitate” it. And as with the drug conspiracy count, we may rely on circumstantial evidence. See Mincoff, 574 F.3d at 1192.
The government‘s theory, at trial and on appeal, is that Mendoza was a part of the CRO‘s racketeering conspiracy because he sold drugs for the gang—the same theory the government pursued as to Mendoza‘s drug conspiracy charge. For these parallel theories, the government offered parallel evidence: the same evidence supported both the drug conspiracy charge and the RICO conspiracy charge. And unsurprisingly, Mendoza countered with the same argument that he used to challenge the drug conspiracy charge—that he was a mere drug user, not a conspirator in distributing drugs to others—and with the same counterevidence.
D. Mendoza‘s Conviction for Possessing a Gun in Relation to or in Furtherance of a Drug-Trafficking Crime or Crime of Violence
Last, Mendoza challenges the sufficiency of the evidence underlying his conviction under
We focus on the first element of proof: whether Mendoza committed an “underlying crime” of violence or drug trafficking. The government suggested at trial that the jury could find that Mendoza committed any or all of three possible underlying crimes: 1) possession of methamphetamine with intent to distribute, which the judge instructed the jury was a drug-trafficking crime; 2) conspiracy to distribute methamphetamine, which the judge instructed the jury was a drug-trafficking crime; and 3) RICO conspiracy, which the judge instructed the jury was “crime of violence.”11 The jury acquitted Mendoza of possession of methamphetamine with intent to distribute, so that charge cannot serve as an underlying crime supporting Mendoza‘s
This leaves Mendoza‘s charges for conspiracy to distribute methamphetamine and RICO conspiracy. We concluded above that the government presented insufficient evidence to justify those two convictions. So, by the same token, we conclude that the government offered insufficient evidence to prove that Mendoza committed either of those two crimes as an “underlying crime” of drug trafficking or violence for the purposes of
charge[] . . . and convict[]” a defendant charged under
***
Given our conclusion that sufficient evidence did not support Mendoza‘s convictions for drug-trafficking conspiracy, RICO conspiracy, and possession of a firearm in furtherance of or in relation to a violent or drug-trafficking offense, we need not address Mendoza‘s other arguments.12
III. CONCLUSION
We thus VACATE Henry Mendoza‘s convictions for conspiracy to distribute drugs under